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Behind Almost Every Defendant There Is An Insurance Company




by:
David L. Goldman
Shapiro, Goldman, Babboni & Walsh - Sarasota Office

 
November 9, 2012

Previously published by Martindale-Hubbell on Fall 2012

From the start of your personal injury case, before you had ever hired an attorney, you were probably dealing with the insurance company rather than the other person who caused the accident. Whether it was to discuss payment of your medical bills or repairing the damage to your vehicle, these matters were almost certainly handled by the insurance company. Most likely, the only contact you had with the person who caused the crash was at the accident scene before the police arrived.

You then hire a lawyer, given your concerns with ongoing problems from your injuries and/or working with the insurance company. Your case reaches the point where settlement negotiations with the insurance company take place. Clearly, it is again the insurance company that is determining how much money is being offered and not the person who had caused the accident.

While many injury cases are resolved without ever having to file a lawsuit, all too often there are cases where settlement negotiations with the insurance company reach an impasse (i.e. the insurance company’s offer is too low).You meet with your lawyer and they explain that the insurance company is unwilling to make a sufficient offer to settle your case, and a lawsuit is soon filed and served on the defendant.

Yet the defendant in your lawsuit is not the insurance company. Instead it is likely to be the driver and/or owner of the vehicle which caused the accident. Florida Statute 627.4136 states that juries are not to know about the availability of insurance. This law is referred to as the non-joinder statute; non-joinder is defined as “omitting a party or cause of action that should have been included in the lawsuit”.

In other words, even though the insurance company tightly controls how much money they will pay you to fix your car or compensate you for your injuries, a jury is not to know about the insurance company’s involvement or existence regarding your case. It is a secret that is kept from the jury because of concern that juries will award more money if they know that there is insurance available.

Yet most people who buy automobile insurance likely presume that others do as well. Therefore it would seem that the greater likelihood would be that a jury would mistakenly assume there was no insurance available, particularly if it is forbidden at trial to even mention whether or not there is any insurance. Why is there is no corresponding concern that a jury could award less money by taking pity on the person who caused the accident by incorrectly presuming they had no insurance?

There is, however, one logical inconsistency. If you purchased an Uninsured Motorist liability policy to cover injuries caused by negligent drivers who were uninsured or underinsured, then you (and not the other driver) are the policyholder or insured. If your insurance company is making too low of an offer on the Uninsured Motorist claim, then technically you would sue yourself as the policy holder because you cannot name the insurance company as a defendant under the non-joinder statute. Obviously, this would be ridiculous. Therefore, an exception exists so that you can sue the insurance company, but only when you file a lawsuit against your own automobile insurance company.

Most lawyers and people who have experience in dealing with personal injury claims understand that at trial the jury is forbidden from being told whether or not there is an insurance policy in place to pay for the damages caused by accident. Yet it is the insurance company that calls all the shots and makes all the important decisions, from how much money to pay to fix your car to compensation for your injuries to selecting the attorney for the person who caused the crash. In fact, the insurance company often hires lawyers who are paid employees of the insurance company rather than provide their policyholder a choice of attorneys. Yet the jury is not allowed to be told of this fact either. The “legal fiction” of the non-joinder statute means that jurors are often unaware of the all-important role played by the insurance company, or even the existence of any applicable insurance policy, and as a result may even mistakenly presume there is no insurance.

 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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